Hard National Security Choices

Peter Margulies of Roger Williams University School of Law has sent in two accounts of panel discussions at the annual meeting of the American Association of Law Schools. Here is the first:

Federal Courts and National Security: A D.C. Circuit Judge and Scholars Find the Fault Lines

In a provocative panel at the American Association of Law Schools’ annual meeting in D.C. this past weekend, the D.C. Circuit’s Brett Kavanaugh discussed the role of federal courts with Georgetown professor and OLC alum Marty Lederman (serving most ably as moderator), Duke’s Curt Bradley (counselor on international law for State Department in 2004), Columbia’s Sarah Cleveland (who just finished a stint in the same job at State), Yale’s Judith Resnik, and American University’s Steve Vladeck. The convivial exchange couldn’t mask substantial controversy about judicial review after September 11. This post reports the panel’s debate on detention and remedies. A second post will deal with charges before military commissions.

The panel began dramatically, as Professor Resnik held up a copy of Latif, the D.C. Circuit’s recent decision that accorded a “presumption of irregularity” to government intel reports in detainee cases. As Marty Lederman noted, the vast blacked-out expanses of the decision suggested that something important is happening here–we just don’t know what it is. Professor Resnik, citing Judge Tatel’s eloquent dissent in Latif, commented that the district court found the government had not met its evidentiary burden and that the court of appeals substituted its own assessement of the intel reports, which can be unreliable. Furthermore, blacked-out analysis cannot fulfill two key functions of judicial review identified by Professor Cleveland: (1) Ex ante, encouraging the executive branch to obey the law and, (2) Ex post, legitimating political branch decisions as properly vetted by the judiciary.

Professors Resnik and Vladeck raised concerns that Latif’s creation of a presumption of regularity applied not only to the government record (in that case, intelligence materials hastily assembled, in contrast to tax or other regularly collected documents that are routinely generated) but to the underlying veracity of the claims made in the decision’s darkened portions. The majority’s presumption undermined the “meaningful review” the Supreme Court required in Boumediene. Professor Resnik argued that the key facets of adjudication in a constitutional democracy are independent judges treating disputants with equal dignity and providing public explanations of their judgments. Resnik also pointed to the majority in Latif’s failure to defer to district court fact-finding. Equally disturbing, she commented, was the Latif majority’s open and aggressive challenge to Boumediene itself. Professor Resnik pointed in particular to the paragraph in the opinion which both derided Boumediene as an excessive intrusion on executive prerogatives and alleged that it created incentives that “no prisoners” be taken.

While Judge Kavanaugh was understandably reluctant to discuss the details of Latif, in which he did not participate and in which Judge Janice Rogers Brown wrote the majority opinion, he offered a coherent case for judicial deference. The political branches are democratically accountable, Judge Kavanaugh noted, and have greater access to information. While these are venerable arguments, familiar both in analysis of courts’ “countermajoritarian difficulty” and recent work such as Bobby Chesney’s excellent piece, National Security Fact Deference, Judge Kavanaugh observed that they are no less worthy because of their extended pedigree. The judge also noted that he actually reads national security scholarship, even work, like Steve Vladeck’s recent article, The D.C. Circuit After Boumediene, that critiques his opinions.

Judge Kavanaugh cited deference to Congress as driving his controversial view in Al-Bihani that Congress’s Authorization of the Use of Military Force (AUMF), which provides the basis for detention, is not limited by international law. The judge conceded that resort to international law, including the law of armed conflict, might be prudent as a policy matter. However, he observed, Congress did not expressly agree to be bound by international law, and courts should hesitate to imply those norms. Curt Bradley argued, by contrast, that it was appropriate to consider international law, along with other materials, in considering Congress’s intent in the AUMF. Curt supplemented this view with a cabined approach to the so-called Charming Betsy canon, named after an early Supreme Court decision in which Chief Justice Marshall opined that courts should read statutes to avoid conflicts with the law of nations. For Curt, who made a similar point in his pathbreaking article, The Charming Betsy Canon and Separation of Powers, courts need to limit the canon’s reach to avoid usurping Congress’s role.

Courts, under this cabined approach, should only apply the canon to avoid a construction of statutory text that itself places the United States in breach of international law. As an illustration, suppose Congress had authorized the President to capture “civilians” abroad and bring them to Guantanamo. Courts would interpret the term “civilians” to include only individuals whose “direct participation in hostilities” (or preparation for such participation) made detention appropriate under the law of armed conflict. However, Curt argued, the Charming Betsy canon does not require that courts read the AUMF to prohibit the President from violating international law when such a step is deemed necessary for U.S. security.

Professor Cleveland argued for a broader conception of the Charming Betsy canon as well as a larger role for international law. Cleveland noted that the canon is intended to ensure that Congress does not inadvertently place the U.S. in violation of international law. She and Resnik further noted that in Hamdi, the Supreme Court construed the AUMF against the backdrop of the law of war. The law of war, according to Hamdi, allowed the President to detain persons captured on the battlefield. Viewing the AUMF as implicitly incorporating the law of war satisfied another statute, the Non-Detention Act, which barred detention of U.S. citizens without congressional authorization. If the law of war established the President’s power under the statute, Cleveland asserted, then it should also presumptively establish that power’s limits.

Moreover, both Cleveland and her Columbia colleague, Trevor Morrison, who posed a question to the panel, noted an irony in Judge Kavanaugh’s position. In his Al-Bihani opinion, which was ultimately softened by the full D.C. Circuit, Judge Kavanaugh had grounded his view in a theory of judicial restraint. Judicial restraint usually manifests itself in deference to the political branches. Curiously, however, restraint in this instance entailed rejection of the position of the President, who had acknowledged that international law limited his detention power. A decision that saves the President from his own considered positions, Cleveland and Morrison ventured, might actually be closer to the conventional view of judicial activism.

The panel also split on remedies for alleged government overreaching. Courts have fashioned a grand bargain, instituting safeguards that limit detention, but veering away from suits for damages. Judge Kavanaugh defended the second term of the bargain. Congress, according to the judge, was best situated to gauge whether allowing suits for damages might chill officials and impede decisive action against terrorist threats. The absence of congressional authorization, therefore, was a “factor[] counselling hesitation” in the creation of remedies, quoting a caveat in the Warren Court’s landmark Bivens decision recognizing a right to sue for damages. The judge also viewed this factor as providing some basis for precluding state tort suits against officials or their agents, such as the contractor-defendants in Saleh v. Titan Corporation. In this sense, Judge Kavanaugh fit within a tradition of skepticism about suits for damages against officials that also includes work by scholars like Peter Schuck and George Brown.

Others on the panel pushed back vigorously against this narrow view of the role of judicially-created remedies. Professsors Cleveland, Resnik, and Vladeck all argued that courts can tailor remedies to avoid an undue chilling effect on officials, while still providing relief to those who have been wronged. I invited the panel to opine on the extraordinary rendition case, Arar v. Ashcroft, in which the Second Circuit declined to allow a lawsuit by a Canadian national whom senior U.S. officials had allegedly shipped to Syria, where the plaintiff was tortured for the better part of a year before being released because of a lack of evidence that he had terrorist ties. In a recent article in the Iowa Law Review, I suggested that suits for damages in such egregious cases encouraged officials to explore alternatives but also minimized opportunity costs. After all, Syria, which has long been on the State Department’s list of human rights violators and has moved up that list precipitously in the last year, should not be on any U.S. official’s list of acceptable destinations. Professor Cleveland observed that the Arar court relied on the mere prospect that the government might invoke the state secrets privilege if the suit proceeded; for Cleveland, reliance on state secrets as a “factor counselling hesitation” was the tail wagging the dog.

Harvard’s Vicki Jackson capped the panel with a question from the floor that compared U.S. courts with Israel’s. She noted that Israel’s Supreme Court has a far more expansive view of its jurisdiction, which includes military targeting and other matters that U.S. courts typically view as “political questions.” Professor Jackson suggested that the more robust “checking function” fulfilled by Israeli courts could also lead to greater legitimacy for government action upheld by the judiciary. Judge Kavanaugh, while not directly responding to Professor Jackson’s question, seemed to suggest that again Congress held the key. Apart from attacks on the United States, where the president has independent constitutional power to respond with necessary and appropriate force, the judge hinted that Congress could restrict presidential action, as it did in the Founding Era case of Little v. Barreme, and courts should enforce legislative limits.

In sum, this lively discussion captured perennial themes about courts since September 11. Some, like Professor Cleveland, look to the courts as an institutional counterweight to the political branches. Others, like Professors Resnik and Vladeck, want the courts to deter and punish specific substantive wrongs, including detention and coercive interrogation. Resnik described the conflict as between detention practices that were despotic (giving the government wide latitude to detain with minimal testing of executive claims) and detention practices that were “democratic,” protecting individual liberty and providing robust review of government evidence. Still others, like Judge Kavanaugh and to some degree Professor Bradley, worry that courts lack the legitimacy or institutional competence for the second role, and can overstep in performing the first function. The debate will continue, with courts providing further guidance as the Supreme Court decides whether it will take up Latif. A cert petition is to be filed this week.

About the Author

About the Author

Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books and a member of the Hoover Institution's Task Force on National Security and Law. For speaking information and for a larger collection of his work, see his Full bio »

Brookings Logo

Lawfare is Published by The Lawfare Institute in Cooperation With

Today, Israeli Prime Minister Benjamin Netanyahu delivered a speech before a joint session of Congress on a potential U.S. nuclear treaty with Iran. During the address, he declared, “This is a bad deal – a very bad deal. We’re better off without it.” NPR shares further analysis of Netanyahu’s speech. Partisan drama has surrounded the . . . Read more »

Search

Search

Site
Wiki

Ad

Support Lawfare

Support Lawfare

The Lawfare Institute is a not-for-profit educational organization devoted to the publication of this site. The Lawfare Institute is a 501(c)(3) tax exempt organization. You can support Lawfare with a contribution of any size. Our mailing address for checks is: P.O. Box 33226, Washington DC 20033-3226. You can also contribute using credit cards or Paypal by clicking on this button.

Support Lawfare By Buying from Amazon

Lawfare is an Amazon affiliate site. Every time you use this search box to buy from Amazon, you raise money for Lawfare.